MUSALEM ENTERPRISE vs. MENSAH AND ANOTHER [1988]DLHC644

Date	1988-01-20
Suit No.
Citation No.	[1988]DLHC644

LAMPTEY J.A.

ADU TUTU FOR THE PLAINTIFFS.

DJABANOR FOR THE FIRST DEFENDANT.

ADUAMA OSEI FOR THE SECOND DEFENDANTS.

[1988]DLHC644
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													<main id="main" class="content" style="min-height: 60rem" >MUSALEM ENTERPRISE <o:p></o:p>vs. <o:p></o:p>MENSAH AND ANOTHER<o:p></o:p>[HIGH COURT, ACCRA] <o:p></o:p>[1989-90] 2 GLR 368<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
20
JANUARY 1988<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

ADU TUTU FOR THE PLAINTIFFS.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

LAMPTEY J.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF LAMPTEY J.A.<o:p></o:p>In this
action the plaintiffs, Musalem Enterprise, claimed the following reliefs:<o:p></o:p>“a. A
declaration that the lease agreement dated 10 January 1985 between C.F.A.O.
(Ghana) Ltd. and the first defendant is null and void. b. An order that C.F.A.O.
(Ghana) Ltd. enter into a fresh agreement with the plaintiffs as originally intended.
c. ¢100,000 damages for loss of earnings against the first defendant or, in the
alternative, a refund of an amount of ¢1,957,425 against the defendants being
refund of the total cost of renovating the premises which is the subject matter
of this dispute plus interest thereon.”<o:p></o:p><o:p>&nbsp;</o:p>By
paragraph 1 of the accompanying statement of claim the plaintiffs averred as
follows:<o:p></o:p>“1. The
plaintiff is a registered partnership carrying on the business of imports,
wholesaling and retailing and acting by its partners, Alhaji Afari Bonkano, a
semi-illiterate, and Alhaji Mumuni Saleh, an illiterate (hereinafter
conveniently referred to as the plaintiffs).” It is clear from the above pleading
that there are two persons engaged in trading as partners under the firm name
or style of “Musalem Enterprise.”<o:p></o:p>The first
defendant on being served with the writ of summons and statement of claim of
the plaintiffs, filed a statement of defence paragraph 1 of which reads as
follows:<o:p></o:p>“1. The
first defendant is not in a position to admit or deny paragraph 1 of the
statement of claim and puts the plaintiff to strict proof of the statement
contained therein.”<o:p></o:p>Then
paragraphs 9 and 10 of the statement of defence ran thus:<o:p></o:p>“9. Some
time in 1982, the first defendant for humanitarian reasons agreed to allow the
plaintiffs, whom he had known as Niger nationals trading in Ghana, to keep some
of their goods in one room of his store after the plaintiffs had been thrown
out of a store next door for attempting in a similar fashion as they later did
with the first defendant to dispossess the real owners of the store. 10. After
the first defendant had offered the plaintiffs shelter for humanitarian reasons
the plaintiffs from time to time supplied the first defendant with goods which
he sold in his store for their mutual benefit.”<o:p></o:p><o:p>&nbsp;</o:p>(The
emphasis is mine.)<o:p></o:p>The first
defendant by his statement of defence resisted the claim of the plaintiffs and
counterclaimed against the plaintiffs as stated in paragraphs 17 and 18 under
the heading “Counterclaim.”<o:p></o:p><o:p>&nbsp;</o:p>I have
referred to the above matters because the first defendant pursuant to Order
48A, rr. 1 and 11 of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A)
moved this court to dismiss the action of the plaintiffs on the ground that the
same is incompetent. Mr. Djabanor, counsel for the first defendant, stated that
the name Musalem Enterprise is not the true name of the plaintiffs. He
contended that since the action is brought by one person, Order 48, r. 11
provided that that single person should and must use his true name and not a
business or any other name. He contended that the true plaintiff had not taken
out the writ of summons in this case and to that extent the writ of summons was
incompetent. He invited the court to dismiss the action of the plaintiffs
against the first def</main>